Setep v The State [2001] PGSC 14; SC666 (18 May 2001)

SC666

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 42 of 2000

IAN NAPOLEON SETEP

-Appellant-

V

THE STATE

- Respondent-

WAIGANI: SAWONG, GAVARA-NANU, KANDAKASI, JJ.
2001: 22 FEBRUARY
2001: 18 MAY

CRIMINAL LAW –Appeal against severity of sentence – Abduction and aggravated rape – Conviction and sentence after trial – Prior conviction and sentence of 30 years for wilful murder – Offence committed whilst on escape from prison – Appeal allowed – Sentence of life imprisonment reduced to 20 years - Criminal Code (Chp. 262), S.347.

CRIMINAL LAW – PRACTICE & PROCEDURE – Co-accused – Discrimination of on the basis of different character and antecedent – Too long a sentence or considerable disparity and feeling of injustice has occurred basis to adjust and reduce sentence – Sentence of life imprisonment reduced to 25 years.

Principles for making sentence concurrent or cumulative considered – Inappropriate to make sentence concurrent with totally unrelated prior sentence – Learned trail judge erred in making sentence to be served concurrent – Decision quashed and sentence ordered to be served cumulatively.

APPEAL – Appeal against sentence – Sentence by trial judge not to be disturbed unless manifestly excessive – Court has power to make such orders as it considers appropriate in the circumstances to do justice – Supreme Court Act (Chp. No. 37) s. 23(4).

Cases Cited
Wanosa & Ors v. The Queen [1971-72] PNGLR 90
Norris v. The State [1979] PNGLR 605
Avia Aihi v. The State(N0.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
John Aubuku v. The State [1987] PNGLR 267
The State v Kaudik [1987] PNGLR 201
James Mora Meaoa v. The State [1996] PNGLR 280
State v Penias [1994] PNGLR 48:
John Fatty Marasev. The State [1994] PNGLR 415
Thomas Waim v. The State (02/05/97) SC519
Winugini Urugitaru v. The Queen [1974] PNGLR 283
Andrew Uramani & 4 Ors v. The State [1996] 287
Acting Public Prosecutor v. Haha [1981] PNGLR 205
Public Prosecutor v. Kerua & Ors [1985] PNGLR 85
The State v. John Pesa [1994] PNGLR 317
The State v. James Gurave Guba (19/12/00) N2020

Counsels
Appellant in Person
K. Umpake for the Respondent

18th May 2001

BY THE COURT: This is an appeal against a sentence of life imprisonment for rape contrary to s.347 of the Criminal Code (Chp. 262) ("the Code"). The appeal is on the basis that, the sentence is excessive and in the alternative, the sentence is cumulative with a 1994 sentence of 30 years for wilful murder. The offence was committed together with other unlawful acts including abduction, robbery, intruding into a dwelling house in the middle of the night, having in possession and using a homemade shotgun to commit the offence. At the time of committing the offence, the appellant was a prison escapee whilst serving the 30 years imprisonment term. He was charged with a co-accused, an Oriomu Nabai Rex with two counts each of abduction and one count each of robbery and rape. They were both convicted on the two counts of abduction and rape but acquitted on the charge of robbery. They were both sentenced to 5 years each for the two counts of abduction but different sentences were imposed for rape. The appellant got life imprisonment while his co-accused, was given 15 years. That was on the basis of their different characters and antecedents. These present a number of issues but the main one is whether the imposition of the maximum prescribed sentence of life imprisonment was appropriate in the circumstances of this case.

The Facts

The relevant facts are these. On the 11th of September 1998 at about 2.00am, the victim went to her cousin, a Don Pewamu’s house in Kila Kila to spend the night there. The appellant who was at that time on the run after escaping from prison where he was serving his 30 years, went with his co-prisoner, one Oriomu Nabai Rex and several other men to the house where the victim was sleeping with her cousins and other relatives. They knocked on the door and demanded it to be opened. They were armed with a softball bat and a homemade shotgun. When the door was not opened, they threatened to burn the house down with the occupants. Fearing for their lives the occupants opened the door.

After the occupants opened the door, the appellant and his accomplices entered the house. They stole money at gunpoint, abducted the victim and another girl and took them away with the expressed intention of having unlawful carnal knowledge of them. The other girl fortunately managed to escape from the appellant and his accomplices and ran into a neighbour’s house. The victim was unfortunate. She also tried to escape and called for help. Because of that, she was hit on the head with the softball bat. That rendered her unconscious temporarily. She was then dragged away and repeatedly raped at various locations between Kilakila and Taikone. She was finally taken to a house at Taikone where she was introduced as the appellant’s second wife and was again raped there. The appellant was one of the main offenders as he did most of the raping and taking the victim to the house at Taikone. After his repeated acts of rape upon the victim, the appellant went into a deep sleep. That gave the victim the opportunity to escape and eventually catch up with her relatives and the police who were looking for her.

The victim was then taken to the emergency ward at the Port Moresby General Hospital. There she was medically examined, treated and subsequently discharged. Medical evidence confirmed that she was a virgin who sustained injuries to her head, suffered bruises and lacerations to here right chin, forehead and the back of her head which was stitched. She also had a bruise to her right elbow and fractured right ring finger. Further she suffered various injuries to her genital. At the time of the examination the victim looked sick, anxious and distressed.

The appellant and his accomplices were not strangers to the victim and her cousins. They all lived in the same area, and knew each other well enough, though not in any intimate way.

The Appeal

The appellant’s notice of appeal sets out the grounds of his appeal as follows:

1. Sentence, the sentence imposed on me was harsh and excessive (life years).
   
2. That I want this life year currently I received to be concurrent, under this 30 years previously received.
   
3. Other others if the Court deems fit
   

The appellant contends under his first ground of appeal that, the term of life imprisonment imposed upon him by the learned trial judge was manifestly excessive because the offence did not fall into the worse category of abduction and rape cases. He also argues that the sentence was manifestly excessive when compared to the sentence of his co-accused who received a 15 years imprisonment term for the same offence. In other words, he argues that the sentence was excessive because the offence did not fall into the worse case of rape and in any case, the sentence he received was not at parity with his co-accused’s. On these bases he argues that the learned trial judge erred in the exercise of his sentencing discretion.

In respect of the second ground, he argues that, he was already serving a 30 years sentence for wilful murder. Consequently, the trial judge erred in not ordering him to serve his life imprisonment term concurrently with that sentence.

For the State, Mr. Umpake submits that the learned trial judge did not err when he imposed the maximum prescribed sentence of life imprisonment because the appellant’s case fell into the "worse type" of abduction and rape cases, which justified the sentence that was imposed. In relation to the disparity argument, he submits that, the appellant was serving a 30 years sentence for a serious and violent offence of wilful murder when he escaped and whilst on run, the committed this offences. Accordingly, Counsel for the State submits that, the learned trial judge was correct in treating the appellant differently from his co-accused.

The National Court's finding and Judgement

The trial judge found that the repeated acts of rape against the victim by the appellant "even more serious" . This is how the learned trial judge put it (page 82 – 84 of the Appeal Book):

"Abduction and rape are serious crimes of violence against women. Women, women groups, churches and the community at large are fed up with these types of violent crimes against women and young girls. They have the right to strongly protest against such behaviour as you exhibited on [the victims]. You had no right to go in the middle of the night and demand the occupants of the house to open the door for you.

... [Y]ou were an escapee at the material time. You had been serving a jail term of 30 years for wilful murder. ... [Y]ou were not going lie low – put it another way – after escaping you were not resting. You were intent to make use of your illegal or borrowed freedom, so to speak, to cause further pain and misery to other people. ... Your crime was committed after you had escaped. That in itself is an aggravating factor. It is a factor, which heavily is against you. That makes this crime even more serious.

...

This was a gang rape in the middle of the night. The girl or victim was abducted from her house and she was repeatedly raped. She received lacerations from the incident, which needed stitching, and as I said earlier, she had been clubbed by a softball bat, which one of the men was holding. She also had a fractured ring finger. [The victim] was physically and sexually assaulted, according to the doctors report. It was against such brute force that she had to contend.

...

I am in a bit of a dilemma here because, Ian Napoleon Setep, you are serving a term of 30 years and 30 years effectively is like life year term. I will treat Oriomu Rex differently from Napoleon Setep because of the different personal backgrounds and circumstances. For instance Oriomu Rex is a first offender while Ian Setep is serving a 30 year term. As indicated earlier, he was serving that 30 year term when he escaped and after the escape, it was during his escape period that he committed this offence. He was an escapee. In my view, 30 years is effectively a life sentence. Because of the circumstances of the case and the fact that Ian Setep was an escapee, I impose the following terms.

...

... [A]nd the fourth count, as I have said earlier, effectively that 30 year term is a life year term. So for the fourth court [rape], I will impose a life imprisonment. Fourth count is life imprisonment because of the fact that he was an escapee and that makes his case different from the circumstances of Oriomu Rex. So, fourth count is life imprisonment.

...

The fourth count will be served concurrently with the current 30 year term he is serving.

In relation to Oriomu Rex and in relation to the second count, he is sentence to 5 years imprisonment with hard labour. Third count is 5 with hard labour. Fourth count, I will impose a term of 15 years imprisonment with hard labour. All these sentences will be concurrently. The prisoner, Oriomu Rex is currently also serving a term of five years for attempted robbery which offence was committed after the abduction and rape charges. ... the effective sentence of 15 years, will be served cumulative to the current term of 5 years that he is serving. And so effectively, it is 20 years: 15 for these charges and the 5 for the earlier one while effectively, for Ian Napoleon Setep, it is life."

The learned trial judge found that the case before him was of a "more serious" case of abduction and rape. That was on the basis of the particular facts of the case as out lined above and the fact that the appellant was a prison escapee on the run from a 30-year imprisonment term for wilful murder. He therefore, imposed the maximum prescribed sentence of life imprisonment.

General Principles on Appeal against Sentence

It is settled law that, a sentence imposed by a trial judge should not be readily disturbed unless it is shown to be manifestly excessive. A sentence could be manifestly excessive because, for example, the trial judge has acted on a wrong principle or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence: See Wanosa & Ors v. The Queen [1971-72] PNGLR 90. Before this Court can change a sentence of the National Court, it must be satisfied that the learned trial judge fell into some demonstrable error which has the effect of vitiating the trial judge’s discretion on sentence: See Norris v. The State [1979] PNGLR 605.

The offence and sentencing trends

The offence of rape is prescribed by s. s.347 of the Code in the following terms:

"347. Definition of rape.

A person who has carnal knowledge of a woman or girl, not being his wife—

(a) without her consent; or

(b) with her consent, if the consent is obtained—

(i) by force; or

(ii) by means of threats or intimidation; or

(iii) by fear of bodily harm; or

(iv) by means of false and fraudulent representations as to the nature of the act; or

(v) in the case of a married woman, by personating her husband,

is guilty of the crime of rape.

Penalty: Subject to Section 19, imprisonment for life."

It is a well-established principle of law in our criminal jurisdiction that, the maximum penalty prescribed by the legislature should be reserved and imposed only for the "worst type" or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi v. The State(N0.3) [1982] PNGLR 92 at page 96 referred to its earlier decision in Goli Golu v. The State [1979] PNGLR 653 and said:

"In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

(per Kidu CJ)

That is however, not to be taken to mean that the offender has to be first found a "dangerous" offender before the prescribed maximum penalty can be imposed. Instead, the sentence must be proportionate to the offence and must be dictated by the particular circumstances of the case: see Avia Aihi v. The State (No.3)(supra) at page 105.

In the Avia Aihi case, the Supreme Court also highlighted the basic sentencing principle of the need to make sentences proportionate to the offence. It then considered the sentence of life imprisonment, which was the maximum punishment, prescribed at that time for wilful murder (now death following amendments to the code in 1991) and held that it should be imposed only in cases properly categorised as the "worst type" case of wilful murder.

In respect of rape cases, this Court in John Aubuku v. The State [1987] PNGLR 267 at pp. 268-269 set the guidelines for sentencing. According to those guidelines, rape calls for an immediate custodial sentence with a starting point of 5 years for a simple case of rape without any aggravating or mitigating factors. That is followed by 8 years for a gang rape or rape after breaking into the victims place of living or the offence is committed by a person having responsibility over the victim or is committed after abduction. The next category is where the offence is committed as part of a concerted campaign and where the offender represents more than an ordinary danger. That should attract a sentence of 15 or more years. The final category of rapes are cases in which the circumstances manifest perverseness or psychopathic tendencies or gross personality disorders and if the accused remains at large he is a danger. In such cases the maximum prescribed sentence of life imprisonment may be imposed. Of course, where there are aggravating factors such as violence, actual or threatened present or firearms or other weapons are or there are repeated acts of rape, or the accused has other prior convictions for rape or other serious offences of sexual or violent kind, the victim is subjected to sexual indignities or perversions and with adverse effects against the victim, whether physical or mental may form the basis to impose sentences above the suggested guidelines.

Rape is a serious and violent crime against women and girls in particular and the society generally. As this Court said in the John Aubuku case, at page 268:

"We believe that rape is a very prevalent offence in Papua New Guinea and women in this country view rape with abhorrence. If we can paraphrase Billam (at 350), the physical consequences of rape are severe. There is the physical harm occasioned by the intercourse and associated violence or force. There is the emotional and psychological trauma. The woman feels violated and degraded. There are the continuing feelings of insecurity, the painful memories, and the fear of venereal disease or pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim. Furthermore rape involves the abuse of an act which, in its right context, is a beautiful expression of love."

Similar words were expressed by the National Court, per Amet J. (as he then was) in The State v Kaudik [1987] PNGLR 201 which were quoted and adopted by the Supreme Court in James Mora Meaoa v. The State [1996] PNGLR 280 at p. 285 that:

"Rape is generally regarded as the most grave of all sexual offences. In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences, the reasons for this are set out as follows:

'Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy.

'Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and remarked that it involved an act which we as a society attach considerable value'."

This Court in the James Mora Meaoa case has also expressed the view that such conduct and or behaviour is intolerable and that our women and girls have to be protect from man who invade their privacy. In so doing it endorsed the following statement from Injia J in State v Penias [1994] PNGLR 48:

"Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence"

The legislature in recognisance of that abhorrence and seriousness of the offence prescribed the maximum penalty of life imprisonment, subject to the courts discretion under s. 19 of the Code. The sentences that have been imposed to date appear not to have served their intended purpose of deterring would be offenders from committing such offences. That is demonstrated by the fact that the number of rape cases in all forms have increased quite dramatically. This Court acknowledged that in the James Mora Meaoa case at page 286 where it said these:

"We also note the high number of rapes in proportion to other crimes committed in Papua New Guinea as shown by the Judges report to the Parliament and consider that this Court must show that such behaviour will not be tolerated."

It therefore calls for a serious review of the way in which the courts have been dealing with the offence, more particularly, the kind of penalties that have been imposed with a view to increasing sentences to correspond with the increase in the crime itself.

Sentences imposed by the Courts to date for abduction and rape are at the highest 19 and half years. That was in John Fatty Marasev. The State [1994] PNGLR 415. The appellant in there, abducted, robbed, unlawfully used a motor vehicle and raped a woman. This Court said the case could be described as "a worse case" category case. The National Court imposed a cumulative sentence of 19 and half years for all the offences of abduction, rape, robbery and unlawful use of motor vehicle and the appellant appealed against that. There was no appeal against sentence by the State so this Court merely affirmed the sentence despite finding the case falling into the "worse type" category.

Subsequently, in Thomas Waim v. The State (02/05/97) SC 519, reduce a sentence of 25 imposed by the National Court for multiple counts of rape on a plea of guilty. There the victim was abducted from her boyfriend and repeated raped by the appellant and his accomplices at various locations. The victim was subjected to sexual perversions and indignities. She was forced to have sex vaginally, orally, and anally. There was no evidence of any weapon being used but force and threats were used to commit the offence.

In reducing the sentence, this Court said at pages 8 and 9 of the judgement these:

"We are of the opinion that the learned trial judge was quite proper in considering sentences greater than the 12 years in The State v Kaudik (supra), and, indeed, the 8 years starting point suggested in Aubuku v The State (supra). Those cases were decided 10 years ago, and there has been an escalation in the prevalence and seriousness in the commission of rapes and multiple gang rapes over the period. This alarming fact calls for proper and adequate reflection in the sentencing decisions of our courts. Thus, 12 years for gang rape is now, in our respectful opinion, inadequate and inappropriate. Some recent decisions of the National Court have properly reflected the community’s concerns and imposed sentences of 14, 15 and 16 years.

This is a particularly very serious case of rape. But we are of the respectful view that the sentence of 25 years was a "quantum leap" under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed."

(Underlining supplied)

It should be undoubtedly clear from all of the above that, abduction and rape in themselves are very serious offences which call for stern sentences. Rape alone carries a penalty of life imprisonment subject to s. 19 of the Code, which allows for the imposition of a lower sentence than the prescribed maximum in appropriate cases. Thus when abduction or other offences gets added to that, it makes the case even more worse as opposed to a case only of rape or abduction standing alone. As noted already, the sentences that have been imposed to date have not served the intended purpose of deterring would be offenders from committing such offences. Instead, the number of this kind of offences is on the increase. It therefore, behoves the Courts to impose sentences higher and above those that have already been imposed to correspond with that increase and correct the apparent failure of the past sentences from deterring would be offenders from offending and make our society save if not nearly as save as possible for our women and girls. However, that has to done progressively, as was made clear by the Thomas Waim case.

Present Case: Appeal Ground 1

(a) Severity of Sentence

The repeated acts of rape in the present case were committed in association with numerous other unlawful purposes by a gang of men. Those other unlawful purposes included intruding into a house in the middle of the night and terrorising a sleeping family at gunpoint. There were demands for the door to be opened and was opened at the threat of being burnt down with the house if there was no compliance. Once the door was opened, the gang entered and stole from the occupants some money and abducted two young girls. One of the girls escaped while the victim was hit on her head rendering her temporally unconscious. The victim was repeatedly raped by the gang at various locations through out the remainder of the night of the ordeal. She was introduced to as the appellant’s second wife, to the occupants of a house and was raped yet again there. A homemade shot gun and a softball bat was used to threaten and to commit the offences and the other unlawful acts.

The appellant denied the charges against him. That necessitated a trial, which required the victim to go to court and relive the ordeal she suffered at the hands of the appellant and his accomplices by reciting the whole incident in court. After a trial the appellant was found guilty and sentenced.

At the time of committing the offences the appellant had escaped from prison where he was serving a 30 years imprisonment term for wilful murder. As the learned trial judge observed, the appellant instead of restraining from committing other offences, he committed yet another violent offence whilst still on the run. He placed himself in the company of other men in the middle of the night and went to a dwelling house and interrupted a sleeping family and relatives for the purposes of committing a serious and violent offence and a series of other unlawful acts.

The appellant and his accomplices were known and identified by face and name. They even called for and committed the unlawful acts with full knowledge of the identity of the victims for no reason whatsoever save only to commit the acts against the victims. They also made their unlawful intentions known. This kind of conduct is the very cause of break down in community respect and trust and consequently a break down in our society. It is already worse that serious offences are committed outside the family or community units. When they creep into those units it renders no place else save not even a dwelling house which has been considered from time immemorial a "man’s castle". Such conducts are therefore, serious offences against society and they alone justify the imposition of tougher penalties to inform people who contemplate engaging in such conducts that such conducts are unacceptable and that the law is going to go hard against them.

The victim in the present case, according to the medical evidence was sick, anxious and distressed as a result of the crimes perpetrated against her. No doubt, she was greatly traumatised and broken. Her esteem and pride as a young virgin girl was violated and so was her person. The appellant and his accomplices left the victim to bear the consequences of the uncalled for evil perpetrated against her. The onset of that can not easily be described, were left to the victim alone to deal with it. No evidence was presented before the learned trial judge of the kind of services that are available to help the victim to cope with the effects of the offence on her. It is common knowledge however, that such services are non existent in our country. We can imagine the victim’s aspirations of having a good marriage and a family was shattered because of the violent and uncalled for invasion of her person. The victim is going to bear these consequences for the rest of her life. Common sense in these circumstances therefore, dictates that, her violators be given sentences that would make them feel the consequences of what they did for the rest of their lives as well subject to any good mitigating factor they may have.

The appellant was previously convicted of another violent offence of wilful murder. He was given a 30 years sentence. He escaped from the time he was serving under that sentence and committed the offence and the various unlawful and unacceptable conducts he was engaged in, in this case. He denied the charges and a trial was successfully mounted against him and was found guilty after that. These factors clearly excluded from any consideration by the learned trail judge the need for his rehabilitation and any inclination for leniency.

In all the circumstances, we agree with the learned trial judge’s finding that, this was a "even more serious" case of rape. It thus calls for a severe sentence with a view to sending a message to like minded persons that the commission of such offences in such circumstances will be met with severe sentences. Society does not accept this kind of conduct. Indeed, we note that Parliament in prescribing the maximum penalty of life imprisonment, it intended that such a sentence should be imposed unless the offender was able to show that in the exercise of the Court's discretion under s. 19 of the Code a lesser sentence is appropriate. We consider it is high time now for the Courts to say enough is enough and that such offenders will not be dealt with lightly. Adequate warnings to increase sentences for rape cases have been given (see James Mora Meaoa (supra) case at page 286) and the time has come to impose the severe sentences.

However, that has to be guided by the recent pronouncements as in the Thomas Waim (supra) case, to avoid imposing a sentence that would amount to a "quantum leap". There is no evidence in the transcripts of the learned trial judge having regard to these cases, or the principle generally not to impose sentences that would amount to "quantum leap". We are of the view that the learned trial judge over emphasised the appellant’s prior conviction and sentence for the violent crime of wilful murder and his escape from serving that sentence and then whilst on the run committed this offence. This in our view led to an error in the exercised of the learned trial judge’s sentencing discretion. In the circumstances, we are satisfied that the sentence was a "quantum leap" and manifestly excessive. It therefore warrants this Court’s interference with the sentence the learned trial judge imposed. In the exercise of the powers vested in us by section 23(4) of the Supreme Court Act (Chp. 37) we would do so by reducing the sentence to a term of years. Such a sentence has to be above the sentences that have already been imposed up this time for similar offences having regard to what we have said in relation to the offence of rape itself and sentencing trend as well as the particular facts of this case.

However what is the appropriate term of years has to be determined by having regard inter alia to the particular circumstances of this case and the need to avoid a disparity of sentence given that the appellant has a co-accused. Indeed, as noted above, the appellant’s appeal is also against sentence on the basis that there is a disparity of sentence between what he received and that of his co-accused.

(b) Disparity of Sentence

There is an appearance of disparity in the sentencing of the appellant and his accomplice, Oriomu Nabai Rex who was given 15 years for rape. That co-accused also had a prior conviction and sentence of 5 years for attempted robbery. But that was not as serious and violent as wilful murder with a sentence of 30 years in hard labour from which the appellant escaped and whilst still at large, he committed a yet another serious and violent offence again. The learned trial judge decided to treat the appellant and his co-accused differently because of these factors as is apparent from the excerpts from his judgement we have quoted earlier.

The principles governing disparity of sentence are also well settled in our jurisdiction. The learned authors of the Book, Criminal Law and Practice in Papua New Guinea (second edition) express the principles in a case similar to the present in the following terms at page 650:

"Where one co-accused had not acted with any greater degree of participation in the crime than others but received a higher sentence of life imprisonment due to a prior conviction for wilful murder: the court is justified in differentiating in the treatment of the person for the same crime if, in considering the public interest, it has regard to the differences in the characters and antecedents of the convicted men, and discriminates between them because of these differences."

Authority for the above is the pre independence Supreme Court decision in Winugini Urugitaru v. The Queen [1974] PNGLR 283 at p. 286. The case is also authority for the proposition that, the fact that a co-accused has received too short a sentence is not a ground for an appellate court to interfere with the sentence. The only exception to that is where there is a demonstration that the appellant has received too long a sentence or that there is considerable disparity between the sentences that there is a justifiable feeling of dissatisfaction and sense of injustice will occur: see page 286- 287 of the judgement. See also Andrew Uramani & 4 Ors v. The State [1996] 287 at pp. 290 – 291.

Going by the above principles, the learned trial judge did not err in treating the appellant differently from the co-accused. He was correct in choosing to treat them separately because of the fact that the appellant was previously convicted and sentence to 30 years in 1994 for wilful murder. He then escaped from serving that term in prison and whilst still at large, he committed yet another very serious and violent offence in association with a series of other unlawful acts. His antecedent and the part he played in the commission of the offences was thus very serious compared to that of the accused.

However, the learned trial judge erred in over looking the fact that, the appellant’s co-accused also had a prior conviction and sentence of 5 years for attempted robbery when he proceeded to impose life sentence against the appellant. Then after having imposed life sentence against the appellant, the learned trial judge gave the appellant’s co-accused a 15 years sentence for rape. He then noted the co-accused already had a prior conviction and sentence of 5 years for attempted robbery and ordered the 15 years to be served cumulatively with the earlier sentence of 3 years. This is an identifiable error.

The only question left to be answered is, whether the imposition of life imprisonment was too long or that the disparity between the sentence the appellant received and that of his co-accused are considerable that he could be left with a feeling of dissatisfaction and a sense of injustice? That question must be answered in our view, by reference to what part the appellant played in the commission of the offence the appellant’s character and or antecedents and the effect of that on the victim.

Any sense of injustice on the appellant’s part has to be viewed in the context of his own conduct and the effect upon himself, the community as a whole and in particular the adverse impacts against the innocent victims. We consider it not appropriate that the concept of justice should be viewed in comparison only as between co-accused persons but also that of the victims of an offence as they would be the ones who demand justice more, against offenders once caught and brought before the courts. As we have already observed, the victim has been left to face and bear the consequence of the violent crime against her for the rest of her life. Justice from that viewpoint thus, dictated a lifetime sentence for the appellant and his accomplices subject to any good mitigating factor and the well accepted sentencing guidelines and principles especially, those we have discussed above.

We note that in 1996 this Court in the John Marase (supra) case imposed a term of 19 and half years in a case of abduction and rape in association with other offences. Then a year later, in 1997 in Thomas Waim (supra) case, this Court reduced a sentence of 25 years to 18 years in a case that was considered a worse case of abduction and rape and where the appellant pleaded guilty to the various charges brought against him. In that case, no weapons were used but the victim was subjected to sexual indignities. Also the victim and the offenders were not known to each other so has to have a de facto case of trust. Further the appellant in that case did not have a prior conviction.

In the present case, the appellant denied the charges and was found guilty and sentenced after a trial. The appellant and his accomplices intruded into a dwelling house in the middle of the night. They abducted the victim and another girl with arms and threats of violence. The victim was beaten unconscious and she sustained injuries to various parts of her body. The appellant had a prior conviction for a very serious offence of wilful murder. He escaped from serving his time in prison for that and whilst on the run, committed this offence. In these circumstances, we consider a sentence of 25 years is appropriate. We have arrived at that conclusion having regard to the sentencing trends and the particular facts of this case, and the part the appellant played with his antecedent or background.

This then leaves the question of whether or not the sentence should be made cumulative or concurrent with the 30 years sentence for wilful murder to be determined. That is the subject of the appellant’s second ground of appeal.

Cumulative or Concurrent – Appeal Ground 2

The learned trial judge decided to make the serving of the term of life imprisonment concurrent with the 30 years he was ordered to serve in 1994 for wilful murder: see page 84 of the Appeal Book. We find this was not a correct exercise of the learned trial judge’s discretion. There are numerous cases or authorities on point.

The cases on point amongst others are Acting Publice Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & Ors [1985] PNGLR 85. From these cases, it is apparent that three principles are involved when it comes to determining the issue presented. These are set out in Keru’s case at page 90 in the following terms:

"The National Court has a discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles is Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of Sentencing (2nd ed), at 53-61). The first principle is what Thomas calls ‘the one-transaction rule’: where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117): 'Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.'

The facts of Tremellan's case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting, and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.

The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha's case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour."

These principles have been adopted and applied in many subsequent cases. An example of that is The State v. John Pesa [1994] PNGLR 317 at pages 320 to 322 and the more recent one of The State v. James Gurave Guba (19/12/00) N2020 at page 10.

In the present case, the previous conviction and sentence of the appellant to 30 years was for wilful murder committed against an entirely different victim out of a different incident and on a different date, time and place. They were committed years apart. Accordingly, it did not give rise to the need to consider whether the sentence in the present case should be made concurrent with the previous sentence. The learned trial judge therefore erred in ordering the sentence in this case to be served concurrently with the prior sentence of 30 years for wilful murder.

In the upshot, we find the second ground of appeal has no merit either in fact or in law. We would therefore, dismiss this ground of appeal. Then in the exercise of our powers under s. 23(4) of the Supreme Court Act (Chp. 37) we would order that the sentence for this offence should be served cumulatively with the earlier sentence of 30 years for wilful murder.

Appeal Ground 3

The third purported ground of appeal is not a ground of appeal at all. In any case, no additional grounds were raised during the hearing of the appeal under this purported ground of appeal. This purported ground of appeal is thus, without merit and has no basis either in law or fact. Accordingly, we would also dismiss this ground.

For these reasons we make the following orders:

1. The appeal is allowed in part.
2. The sentence of life imprisonment is quashed and substituted with a sentence of 25 years.
3. The decision to make the sentence served concurrently with the 30 years term imposed in 1994 is quashed.
4. The sentence of 25 years shall be served cumulatively with the earlier sentence of 30 years for wilful murder.

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Lawyer for the Appellant: Nil (In Person)
Lawyer for the Respondent: Public Prosecutor